Leiden Law Blog

Transgender minors and their birth certificate

As of July 2014 it is possible under Dutch law for transgenders to change the gender on their birth certificate without having to submit to gender reassignment surgery. More or less at the same time, similar legislation was passed in the province of British Columbia, Canada. In both jurisdictions, an application for a change of gender designation, accompanied by a declaration from a physician/psychologist, can be filed with the administrative office that is responsible for registering births. The gender designation will be changed and a new birth certificate will be issued.

There is however an interesting difference between the two laws. The Dutch law only applies to persons 16 years of age and older, whereas the law in British Columbia also applies to minors, provided their parents and/or guardians consent. One of the driving forces behind the changed British Columbia Law is a well-spoken transgender girl, who has been campaigning for the right to have her gender designation changed on her birth certificate since she encountered problems crossing the Canada/US border visiting her grandmother in the US. Her passport identified her as a boy, but she has lived as a girl since she was a small child. Each time she crossed the border she had to explain who she was. At the time the BC law came into force last July she was 11 years old and one of the first people to apply for a change of gender designation on her birth certificate. This, however, is not the end of her fight: her next goal is to get British Columbia to stop including gender designation on birth certificates in the first place. Her case is currently before the British Columbia Human Rights Tribunal.

This is not only an example of child participation, but also illustrates that listening to the experiences of children and taking them seriously, can change how we think about the ability of children to make decisions about their own lives. In the Netherlands there has been discussion in Parliament about making the possibility to change a gender designation on a birth certificate available to minors as of 12 years of age with the consent of their legal representatives. But the conviction that transgender children may still change their mind about their gender during puberty, led to the age of 16 and older. The current law, including the age constraint, will be reviewed after 5 years. In this context it is interesting to point out a number of conclusions made in the 7th version of the Standards of Care (published by the Professional Association for Transgender Health in 2012). First of all: Mental health professionals working with children and adolescents should not impose a binary view of gender. They should give ample room for clients to explore different options for gender expression. This supports the idea of not including gender on documents needed for minors for identification (and possibly for adults as well). Furthermore, in the context of medical intervention for transgender minors, it is made clear that not acting is not a neutral option but also has consequences for the minors involved. It may for instance increase the degree of psychiatric stress during adolescence as a result of stigmatization and abuse. This may be equally true where gender registration on identity documents is concerned.

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